United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
August 29, 2017, I granted plaintiffs' motion to compel
responses to their sixth request for production of documents
and ordered defendants to comply within thirty days. At
midnight of the thirtieth day, the Renco defendants filed a
motion asking that I reconsider my Order with respect to
certain categories of documents I ordered them to produce. I
will deny the motion.
Rule of Civil Procedure 54(b) permits the district court to
“exercise its general discretionary authority to review
and revise its interlocutory rulings prior to the entry of
final judgment.” Auto Servs. Co., Inc. v. KPMG,
LLP, 537 F.3d 853, 856-57 (8th Cir. 2008) (citing
Partmar Corp. v. Paramount Pictures Theatres Corp.,
347 U.S. 89, 100 (1954) (observing that “[t]he power
remained in the trial court until the entry of his final
judgment to set aside, for appropriate reasons, ”
orders previously entered in the case); Interstate Power
Co. v. Kansas City Power & Light Co., 992
F.2d 804, 807 (8th Cir. 1993) (“Under the last clause
of Rule 54(b), a non-final order ‘is subject to
revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of
all the parties.'”)). Under Rule 54(b), I may amend
or reconsider any of my rulings in order “to correct
any clearly or manifestly erroneous findings of facts or
conclusions of law.” Jones v. Casey's Gen.
Stores, 551 F.Supp.2d 848, 854 (S.D. Iowa 2008)
(internal citations and quotation marks omitted). I may also
grant reconsideration if I patently misunderstood a party,
made a decision outside the adversarial issues presented to
me by the parties, made an error not of reasoning but of
apprehension, or where a controlling or significant change in
the law or facts has occurred since the issue was submitted
to the Court. See Singh v. George Washington Univ.,
383 F.Supp.2d 99, 101 (D.D.C. 2005). Although I have the
power to revisit my prior decisions, I “should be
loathe to do so” in the absence of such extraordinary
circumstances. Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817 (1988). “[T]he Court . .
. has an interest in judicial economy and ensuring respect
for the finality of its decisions, values which would be
undermined if it were to routinely reconsider its
interlocutory orders.” Trickey v. Kaman Indus.
Techs. Corp., No. 1:09CV26 SNLJ, 2011 WL 2118578, at *2
(E.D. Mo. May 26, 2011).
their motion, the Renco defendants ask that I reconsider that
portion of my previous Order compelling production of certain
financial documents and tax returns in response to
plaintiffs' Request Nos. 3(a), 6(a), 9(a), 9(c), and 11.
They argue, as they did in response to the original motion to
compel, that 1) the documents sought are not relevant to the
alter ego and/or choice of law analyses; 2) information
contained in this compelled production is cumulative to
information in other documents that have been or will be
produced; and 3) plaintiffs have failed to show good cause
for disclosure of tax returns. These defendants also argue,
generally, that I erred when I considered and based my
findings on documents first submitted by plaintiffs with
their reply brief, because doing so deprived them of the
opportunity to respond to plaintiffs' mischaracterization
of these documents.
careful and thorough consideration of the parties'
arguments on the motion to reconsider, as well as the
exhibits submitted and all of the case law cited, I find that
the Renco defendants have not demonstrated any manifest error
of law or fact in my previous Order. Nor have they shown any
true misapprehension of the adversarial issues presented to
me or that my decision was outside of these issues. In fact,
the arguments raised in their motion to reconsider - and the
case law they cite - convince me that my previous ruling was
correct. Requests 3(a), 9(a), and 11 The Renco
defendants argue that none of the information sought in these
requests is relevant to the alter ego or choice of law
analyses; that the financial information is cumulative to
other information plaintiffs possess regarding transfers
between Renco and Rennert and/or the Trusts; that they are
willing to provide stipulations that would satisfy
plaintiffs' relevant need; and that plaintiffs have other
tools at their disposal to resolve any perceived financial
discrepancies in the records already produced.
to Renco's argument, the conversion of corporate assets
for a shareholder's personal benefit is relevant to the
“control” factor of alter ego analysis. See
Fleming Cos., Inc. v. Rich, 978 F.Supp. 1281, 1304 (E.D.
Mo. 1997); NLRB v. Bolivar-Tees, Inc., 551 F.3d 722,
728 (8th Cir. 2008). Accordingly, “how” the
shareholders allegedly used Doe Run Peru's corporate
assets is relevant, as well as “where” such
conversions and/or personal expenditures occurred for choice
of law determination.
Renco defendants also aver that Renco's General Ledger
contains information regarding transfers and payments from
Renco to Rennert and any Trust defendant, and that this
information is sufficient to show whether the relationships
at issue in this litigation warrant piercing the corporate
veil. I agree with plaintiffs that this information is too
limited and not sufficient to show the alleged commingling of
funds and assets among and between the subsidiaries and
Renco, which were then ultimately paid to and used by Rennert
and the Trusts for non-corporate purposes. See Hometown
2006-11925 Valley View LLC v. Prime Income Asset
Mgmt., LLC, No. 3:13-CV-04440-N, 2016 WL 6464485, at *2
(N.D. Tex. Mar. 29, 2016) (requests pertain to the
interrelatedness and financial setup of the defendants, which
is relevant to claims for alter ego liability). Production is
warranted because plaintiffs bear the burden of proof on each
of their claims, the information is necessary to determine
whether the unique facts of this case warrant veil piercing,
and the defendants currently have exclusive access to the
information sought. Id. The proposed stipulations do
not provide this relevant information.
the Renco defendants argue that these requested documents are
not necessary to resolve the purported financial
discrepancies identified in documents already produced.
Citing Coll v. Stryker Corp., No. 14-CV-1089 KG/SMV,
2017 WL 3052498 (D.N.M. July 12, 2017), they contend that,
instead, plaintiffs can depose corporate representatives
about these alleged discrepancies, or wait until trial and
ask the factfinder to make inferences based on such
discrepancies. In Coll, however, the integrity of
the financial information was not yet at issue - the
plaintiff merely sought the underlying source documents in an
effort to verify the financial data already produced. No
discrepancies or irregularities in the data had yet arisen or
been identified. Because of that circumstance, the court
noted that plaintiff could investigate the integrity of the
data through Rule 30(b)(6) depositions or through examination
of the comprehensive database from which the already-produced
financial information came. The court noted, however, that if
such investigation revealed discrepancies, discovery may be
had on the underlying documents that plaintiff sought.
Id. at *3. See also Flexiteek Ams., Inc. v.
Tek-Dek, LTD., No. 08-60995-CIV-SNOW, 2015 WL 11123312,
at *1 (S.D. Fla. Mar. 6, 2015) (plaintiffs were entitled to
discovery of additional source documents to fill in gaps in
financial information, where defendant had already provided
some source documents and plaintiffs had identified
discrepancies within the materials produced) (cited in
Coll, 2017 WL 3052498, at *6). Here, contrary to
Coll, plaintiffs have identified discrepancies in
the financial data already produced and seek additional
documents to reconcile these conflicts. Such discovery is
permissible in these circumstances. See Coll, 2017
WL 3052498, at *3; Piller v. Perftech, Inc., No. 10
C 5504, 2011 WL 2293363, at *3 (N.D. Ill. June 9, 2011)
(motion to compel financial documents granted in part -
relevant to add context and meaning to financial statements
question the assertion that the information plaintiffs seek
to obtain is within some other source available to them.
Notably, many of the sources that the Renco defendants
describe as “available” are documents that I
ordered them to produce over their wholesale objections to
all discovery requests propounded by plaintiffs, and some of
these documents have yet to be produced. It thus appears that
regardless of the perceived “availability” of
other sources for this requested information, plaintiffs'
access to those other sources has been obstructed or
not reconsider my Order to the Renco defendants to produce
6(a) and 9(c)
Renco defendants argue that plaintiffs have failed to show
good cause for production of Rennert's and the Trust
defendants' tax returns as sought in these requests, and
that I therefore erred when I compelled their disclosure.
returns are discoverable upon a showing of good cause. A
party seeking disclosure of tax returns must show: 1) the
information is relevant, and 2) there is a compelling need
for the disclosure because the information is not otherwise
readily obtainable. Tank Holdings v. Bell, No.
4:12-CV-713 JAR, 2013 WL 2457189, at *1 (E.D. Mo. June 6,
2013); Sowers v. Gatehouse Media Mo. Holdings, Inc.,
No. 4:08CV633 TIA, 2009 WL 1106946, at *1 (E.D. Mo. Apr. 23,
2009). While the moving party has the initial burden of
showing that the tax returns are relevant, the opposing party
has the burden of proving that the information is readily
obtainable from another source. Scottrade, Inc. v.
Variant, Inc., No. 4:13CV1710 RLW, 2014 WL 5489291, at
*2 (E.D. Mo. Oct. 30, 2014); PSK, L.L.C. v. Hicklin,
No. C09-0105, 2010 WL 2710507, at *2 (N.D. Iowa July 8,
2010). In my previous Order, I found the records to be
relevant and to not otherwise be available to the plaintiffs.
The Renco defendants' arguments do not persuade me that I
erred in this determination.
have shown the relevance of these tax returns. Given the
complicated corporate structure(s) involved in this case and
the interrelatedness of these structures, both among
themselves and their owners/shareholders, the tax returns of
Rennert and the Trust defendants may help to ascertain the
extent and nature of the financial dealings between them and
these entities, including the commingling of assets. See
Federal Trade Comm'n v. AMG Servs., Inc., No.
2:12-CV-536-GMN-VCF, 2015 WL 5097526, at *6 (D. Nev. Aug. 28,
2015); In re Don's Making Money, LLP, No.
2:99-BK-07757-CGC, 2008 WL 509531 (Bankr. D. Ariz. Feb. 19,
2008); Benchmark Design, Inc. v. BDC, Inc., No.
88-1007-FR, 1989 WL 81618, at *1 (D. Ore. July 5, 1989).
Cf. Certified Enters., Inc. v. United States, No.
4:17-CV-202 SNLJ, 2017 WL 4778558, at *3 (E.D. Mo. Oct. 23,
2017) (personal financial information relevant to alter ego
claim because it may show ...